dissenting.
This proceeding was brought by relators to prohibit respondent from enforcing an order compelling them to comply with a subpoena duces tecum to produce a report made by respondent coroner to respondent director of the Division of Highway Safety, which was done in compliance with § 58.-445, RSMo (Laws 1973, p. 149, §§ 1, 2). This statute requires the coroner to make or cause to be made blood tests of a driver or pedestrian, who dies within 4 hours of and as a result of an accident involving a motor vehicle, to determine the presence and percentage concentration of alcohol, and drugs, if feasible, and include them in his report to the division of Highway Safety. § 58.449, RSMo (Laws 1973, p. 149, § 4), which rela-tors contend gives them an absolute right to refuse to obey the subpoena duces tecum, is: “The contents of the report and results of any test made pursuant to the requirements or authorizations of sections 58.445 to 58.449 shall be used only for statistical purposes which do not reveal the identity of the deceased.” (Italics added.)
The underlying action, as shown by exhibits attached to the petition for writ of prohibition, was brought by Thomas E. Girdner, as beneficiary under two policies covering accidental death, a total of $8,400.00, of the insured, Robert L. Girdner, deceased, who was plaintiff’s brother. It was alleged in Thomas’ petition that Robert L. Girdner died January 25, 1975, “from injuries sustained in an accident.” Thomas alleged that he gave defendant, Old American Insurance Company, and its manager of its Health Division, D. F. Butler, due notice of the accident and proof thereof, but defendants refused demand for payment. No specific reason was given for the refusal of the demand for payment. Old American’s refusal, contained in its letter, was merely: “Information contained in our file indicates that Mr. Girdner’s accident was due directly to a condition excluded by the policies.” Copies of the policies were attached to the petition in the underlying action, certified copies of all the same being before this court as exhibits to the suggestions in opposition to the petition for writ of prohibition. One policy contains the clause, “The Company shall not be liable for any loss sustained or contracted in consequence of the Covered Person’s being intoxicated or under the influence of any narcotic unless resulting from the advice of a physician.” The other policy contains the clause, “This policy does not cover any loss caused, directly or indirectly, wholly or partly, by * * * (3) intoxication of the insured, or * *.”
There was a stipulation of the parties (plaintiff and defendants) in the underlying action that Robert L. Girdner was pro*713nounced dead at approximately 10:10 p. m., on January 25, 1975, as a result of having been in an automobile accident which occurred at approximately 9:40 p. m., on the same date, he being then the operator of a motor vehicle; that the parties requested of the Director of Highway Safety the contents of the records required and provided by § 58.445, pertaining to the said Robert L. Girdner, but were denied the request; and that the parties caused the director to be subpoenaed to produce the records, but he refused under oath to divulge the contents of the records, or to make them available to the parties, or to allow them to be inspected or reproduced.
The return to the writ of prohibition herein pleads, “3. None of the parties to the lawsuit in the Circuit Court of Mercer County, Missouri, being Thomas E. Girdner, Plaintiff, and Old American Insurance Company, and D. F. Butler, Defendants, has objected to or in any way sought to block discovery of the information which has given rise to this action, in fact, all of the parties have joined the attempts to obtain and discover the information by stipulation, direct questioning at deposition sessions of Relators and informal request.” The traverse to the return does not deny this paragraph 3, so it and the other matters referred to above must be taken as true.
The dispositive question here is whether the provisions of § 58.449, that results of blood tests shall be used only for statistical purposes which do not reveal the identity of the deceased may be waived by a family member in interest such as plaintiff, brother of deceased, Thomas E. Girdner. This matter is not touched upon in the majority opinion.
Respondent does not precisely set forth in his points that the provisions of § 58.449 were waived by Thomas E. Girdner. It is said merely that the report is relevant to the subject matter (obviously the cause of death of decedent) and that it is not privileged. In the first instance, any report of blood test results to the Director of Highway Safety would have been privileged to Thomas E. Girdner as a member of the public. He is a member of that class entitled not to have, over his objection, the identity or the blood test results of a deceased disclosed. It is for his protection, and others similarly situated, that the Legislature must be held to have intended to protect for the purpose of saving them the embarrassment of having the fact of a family member having died in an automobile accident as a result of intoxication, yet preserving for preventive legislative measures the value of statistical data. The prohibition against the use of the reports and blood test results for only statistical purposes could not have been for the personal protection or privilege of coroners or the Director of Highway Safety.
Quite apparently here, the pleadings and motions before respondent which caused him to threaten to compel obedience by relators of the subpoena duces tecum were that the plaintiff had expressly waived any objection based upon statutory privilege. It is really in that posture that the application for writ of prohibition came before this court.
The words in § 58.449 “shall be used only for statistical purposes which do not reveal the identity of the deceased” are undoubtedly mandatory upon the Director of Highway Safety and coroners. See the construction of the word “shall”, 82 C.J.S. Statutes § 380, p. 877; and State ex rel. Laffoon v. Youngdahl, 391 S.W.2d 605, 607 (Mo.App.1965). The statute means, simply, that neither the director nor coroners may upon their own volition use blood test reports for anything but statistical purposes which do not reveal the identity of the deceased. Nor can a stranger to the benefit conferred, such as Old American Insurance Company in the underlying case, cause the information to be revealed over the objection of a person for whose benefit the statute was enacted. The statute imposes no restriction upon any protected member of the public in personally and expressly waiving the matter of revelation of the identity of the deceased and the results of any blood test performed upon his body.
*714The statute here does not declare that its violation shall be a misdemeanor and it contains no penalty for failure to comply with its provisions. “It may be stated as a general rule that legislation enacted to govern civil rights and contracts which does not carry criminal or penal provisions may be waived by those affected by such laws.” 2A Sutherland, Statutory Construction, § 55.08, p. 398. See also 82 C.J.S. Statutes § 376, p. 874. Further rules are of value in determining the underlying issue in this case. “As a general thing, rights granted by statute may be waived unless the statute is intended to protect the general rights of the public rather than private rights. While one cannot waive a public obligation created by statute, he may waive a statutory requirement the purpose of which is to confer a private right or benefit, * * 28 Am.Jur.2d Estoppel and Waiver, § 164, p. 850. And, “Statutory rights may be waived or surrendered, in whole or in part, by the party to whom or for whose benefit they are given, if he does not thereby destroy the rights and benefits conferred upon or flowing to another in or from such statute or other legal or equitable source.” 28 Am.Jur.2d Estoppel and Waiver, § 164, p. 851. See also § 165 following. By permitting Thomas E. Girdner to exercise his right of express waiver, a privilege which he as beneficiary and a member of deceased’s family possesses, no violence is done to the rights of other members of the public who might desire to insist upon the secrecy of blood test reports and the identity of the deceased. There is here no anticipatory waiver as a condition to the issuance of the policies of insurance in the underlying action, but the waiver is presented after the fact of death.
No ease has been found which directly rules that statutes such as § 58.449 may be waived by a person for whose benefit it was enacted. In United States Life Insurance Company v. Mason, 214 Va. 328, 200 S.E.2d 516, 517 (1973), however, it was ruled that there was no waiver merely by the plaintiff maintaining her action for benefits because the burden of proof was upon the insurance company to establish the exclusion of accidental death of the deceased being caused directly or indirectly by intoxication. The court said the Legislature, in enacting a statute similar to Missouri, intended that direct testimony as to results of blood alcohol tests shall no longer be admissible in civil litigation (obviously, as was the fact over the objection made by plaintiff). The court did say, “Assuming without deciding, that a civil litigant has the power to waive the provisions of Code § 19.1-42, we hold that there was no waiver by the beneficiary.”
Footnote 2 at page 4 of the majority opinion is irrelevant. There is no fact in this case that an autopsy was performed or that the result of any autopsy was available. The only fact stipulated was that the blood test report here existed, and its production, by the assent of all the parties, would determine the key issue of the intoxication of deceased, and possibly end the litigation.
I respectfully dissent from the majority opinion for the reasons stated. I would quash the writ of prohibition as having been improvidently issued.